A federal magistrate judge has recommended dismissing civil rights claims in a lawsuit filed by the family of a Sudanese refugee shot to death after a 911 operator told him to return to Denver, a move that could result in the case being heard in a state court.

Judge Michael E. Hegarty said the operator's actions in sending Jimma Reat back to Denver following an attack on the car he was riding in played a role in Reat's death.

"But his conduct does not render him constitutionally culpable in light of the circumstances he confronted during the 911 call," Hegarty wrote.

He went on to say that Reat's family, including two brothers who were with him on the night of the attack, "have plausibly satisfied the requirements of willful and wanton conduct with regard to each of their state claims."

It will be up to U.S. Judge Robert E. Blackburn to decide whether to dismiss the claims and either retain jurisdiction over the case or send it to Denver district court.

Hegarty said the plaintiffs haven't shown that there was a Constitutional violation under either the due process or equal protection clauses of the Fourteenth Amendment.

John Holland, the lawyer for the plaintiffs, said he disagrees with the magistrate and will ask for further review of the case.

"On the state law claims, the Court has correctly and firmly found that there is "ample" evidence that Mr. Rodriguez's conduct was willful, wanton, reckless, conscious and knowing and created a fatal danger for the passenger plaintiffs and Jimma Reat," Holland said in an email.

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But Hegarty has "set the cross bar" for courts being shocked, Holland said, one of the conditions needed to pursue the claim in federal court, too high.

"Plaintiffs have failed to plausibly demonstrate that (Rodriguez') decisions, though perhaps unwise, meet the "high level of outrageousness" required to shock the conscience of a federal court," Hegarty wrote.

If Blackburn sends the case to district court, the plaintiffs won't be able to sue the city of Denver, only Rodriguez, Holland said.

Rodriguez's superiors at Denver 911 Emergency Communications knew about a February, 2012 incident in which Rodriguez mishandled a 911 call but kept him on the job, Holland said.

In that case it took Rodriguez more than five minutes to send the call to the dispatch queue. The city found that "at no point in the conversation did (Mr. Rodriguez) actively listen to what the caller had to say or appear to understand that a homicide had occurred," according to a court document.

"We want to investigate training issues and a history of incidents like this going back years," something that wouldn't be possible if the case goes to state court, Holland said.

If the case isn't heard in federal court, he added, the City won't learn from the case and won't address problems that should be corrected, Holland said.

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